Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Merpel, Jeremy Phillips, Eleonora Rosati, Nicola Searle, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here

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Tuesday, 26 August 2014

Jeremy kindly informed me of a very interesting case about the ownership of the “likes” generated by a social media account created by a fan of the television show The Game. Spoiler alert: the fan lost.

On August 20th, the Southern District Court of Florida granted Defendant Black Entertainment Television LLC (BET)’s motion to dismiss in a case where the network was sued by Stacey Mattocks over the control of her Facebook fan page dedicated to The Game television show. The case is Stacey Mattocks v. BlackEntertainment Television LLC., 0:13-cv-61582.

This Kat Has to Ask: Is this Alsatian Pinot ?

The Game is a dramatic comedy about the lives of professional football players, their wives and girlfriends, and was originally broadcast by the CW Network from 2006 to 2009. In 2008, Plaintiff Stacey Mattocks created a The Game Fan Page on Facebook (the FB Page). According to Facebook’s Terms of Service, an individual may create such page, even if not affiliated with the brand or entity featured there, as long as it is not deceptive and that the page “make[s] clear that the Page is not the official Page of the brand, entity (place or organization) or public figure.” Fan pages are public. The FB Page did not contain any BET-owned or third-party-owned content and Plaintiff did not present the FB Page to be an official fan page.

After The Game was canceled in 2009, Plaintiff nevertheless, according to the complaint, “continued to aggressively promote [it] on the FB Page in hope that a network would eventually pick it up and return it to air.” At the time, the FB Page had over 750,000 “likes.” Plaintiff’s wishes came true when Defendant began producing and broadcasting new episodes of the show in January 2011. Plaintiff alleged in her complaint that this decision was made “due in large part to [her FB Page.]”

BET contacted Mattocks in the Fall of 2010, when the FB Page had about 1.3 Million “likes” and hired her part-time in January 2011 to manage the FB Page. BET then “prominently displayed its trademarks and logos in the top header of the FB Page, encouraged BET’s viewers to “like” the Page, and provided Mattocks with exclusive content, including links to video clips and photographs, to post on the Page.” Plaintiff could chose not to post some material, but posted most of it. The two parties entered into a letter of agreement in 2011 where BET could have access to the FB Page and Mattocks would not lose her administrative rights. All these efforts paid off as the number of “likes” on the FB Page went from around two million to more than six million.

After signing their letter of agreement, BET and Mattocks also discussed full-time employment, but Mattocks suspended BET’s administrative access to the FB Page pending further agreement. BET then asked Facebook to “migrate” fans of the page created by Mattocks to an official FB Page created by BET. Facebook also shut down Mattock’s FB Page. Further, BET successfully asked Twitter to shut down the account Mattock used to promote the series for BET.

I Could Have Been A Contender...

BET informed Mattocks that it had rescinded “any and all rights that may have been previously granted to you directly, implicitly or otherwise, to use BET intellectual property (“BET Material”). You are respectfully directed to cease and desist from using all BET Material in any and all media immediately and further advised that BET expressly reserves its various rights and remedies as copyright and trademark owner in connection with willful infringement of our intellectual property.”

Mattocks sued BET, alleging inter alia that BET wrongfully deprived her of “certain rights” by disabling the FB Page and her Twitter account. She also claimed tortious interference with her contractual relationships with Facebook and Twitter, breach of agreement and conversion of her business interest in the FB Page. Defendant moved for summary judgment. The court granted defendant’s motion on all counts.
The court found no tortious inference with a contractual relationship as, under Florida law, the interfering defendant must be a stranger to the business relationship, unless it is done for malicious reasons. The court found that BET was not a stranger to the relationship as it exercised control over both social media accounts. It did not act maliciously either as it had been deprived of “control over its intellectual property on the [FB] Page and how [The Game] was officially promoted there.” The court found that BET acted to have these two social media accounts closed down under “companies’ policies protecting brand owners’ rights.” As for the breach of contract, the court found that Mattock’s material breach by blocking administrative access excused performance of the agreement by BET.

Mattocks also claimed that BET converted a business interest she had in the FB Page. This interest was all the “likes” on the FB Page which provided her with business opportunities with companies paying her for redirecting visitors to their sites. But the court found no property interest in the “likes” on the FB Page, as ““liking” a Facebook Page simply means that the user is expressing his or her enjoyment or approval of the content.“ As users are free to revoke their “likes” anytime, the court concluded that “if anyone can be deemed to own the “likes” on a Page, it is the individual users responsible for them.“

The case is interesting as it raises the issue of ownership of a social media account. The issue is not novel when the case involves an employer and an employee‘s arguing over the ownership of an account [see here and here], but I believe this is the first time a court had to examine a case where a fan is claiming ownership rights over an account promoting a show, a sports team or an artist (if you know of such case, please let us know!).

The parties in the cases involving an employee and an employer both struggled to prove which party was indeed the source of a particular social media account’s success. In our case, before BET got involved in the FB Page, Mattocks could not, and did not, post any BET-owned or third-party-owned content from The Game. The FB Page got many more “likes” after “official content” was regularly posted and that content, protected by copyright and trademark, undoubtedly played an important role in the FB Page’s success. However, Plaintiff was certainly emotionally involved with the show and that passion may have attracted “likes” of users touched by an individual’s work of love, which may have contrasted with corporate promotional efforts. But, at the end of the day, it is the corporation which owns the IP rights over the content, not the fans.

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Gama and Pal: is the wet-wipe packaging confusingly similar?

Yesterday morning the IPKat posted this item on an ongoing passing-off action, Gama Healthcare Ltd v Pal International Ltd. in which Gama objected that Pal's wet-wipe packaging would lead people to think it was theirs.

When that Katpost went live, there were no examples of the parties’ packaging to show readers. The Kats have since received images of both, which they reproduce below, and they ask readers, through the medium of the sidebar poll below, if they think that Pal's packaging might be mistaken for Gama’s one.

Pal's packs are sold under the Medipal brand and Gama's are sold as Clinell products.

Caveat: this poll is conducted purely for the amusement of readers of this weblog. It is not mandated by the trial judge or commissioned by either party; it is not based on any methodology and it is not intended to have any evidential value at all.

Wet-wipe packaging: do you think you could pick up a packet of Medipal, thinking it was Clinell?

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